Karnataka High Court
Sharanappa And Ors vs The State Of Karnataka on 15 September, 2023
-1-
NC: 2023:KHC-K:7446
CRL.A No. 200175 of 2018
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF SEPTEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE VENKATESH NAIK T
CRIMINAL APPEAL NO.200175 OF 2018
BETWEEN:
1. SHARANAPPA
S/O. YAMUNAPPA
AGED ABOUT 35 YEARS
OCCUPATION: AGRICULTURE
2. YAMUNAPPA
S/O. MAHADEVAPPA
AGED ABOUT 65 YEARS
OCCUPATION: AGRICULTURE
3. YANKAPPA
S/O. YAMUNAPPA
AGED ABOUT 40 YEARS
OCCUPATION: AGRICULTURE
Digitally signed by 4. SANGAPPA
SHILPA R
TENIHALLI S/O. YAMUNAPPA
Location: HIGH AGED: MAJOR
COURT OF
KARNATAKA OCCUPATION: AGRICULTURE
5. MANJUNATH
S/O. YAMUNAPPA
AGED: MAJOR
OCCUPATION: AGRICULTURE
ALL ARE RESIDENT OF
HIRE-UPPERI VILLAGE, LINGASUGUR
RAICHUR - 586 101.
...APPELLANTS
(BY SRI SHIVANAND V. PATTANASHETTI, ADVOCATE)
-2-
NC: 2023:KHC-K:7446
CRL.A No. 200175 of 2018
AND:
THE STATE OF KARNATAKA
REPRESENTED BY ADDITIONAL STATE PUBLIC
PROSECUTOR
HIGH COURT OF KARNATAKA
KALABURAGI BENCH - 585 103
THROUGH LINGASUGUR POLICE STATION
RAICHUR - 586 101.
RESPONDENT
(BY SRI J. SHAHABUDDIN, H.C.G.P.)
***
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CR.P.C. PRAYING TO SET ASIDE THE JUDGMENT OF
CONVICTION DATED 15.12.2018 AND ORDER ON SENTENCE DATED
17.12.2018 PASSED BY THE PRINCIPAL DISTRICT AND SESSIONS
JUDGE, RAICHUR, IN S.C. NO.25/2013 CONVICTING THE
APPELLANTS/ACCUSED NOS.1 TO 5 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 504, 324 AND 326 READ WITH
SECTION 149 OF THE IPC.
THIS CRIMINAL APPEAL IS COMING ON FOR FURTHER
DICTATION, THIS DAY, THE COURT MADE THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants-accused Nos.1 to 5 being aggrieved by the judgment of conviction dated 15-12-2018 and order on sentence dated 17-12-2018 passed by the Principal District and Sessions Judge, Raichur, in Sessions Case No.25 of 2013, wherein the learned Sessions Judge convicted the appellants/accused Nos.1 to 5 for the offences punishable under Sections 326, -3- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 324 and 504 read with Section 149 of the Indian Penal Code, 1860 (for short, 'IPC').
2. The factual matrix of the case are that on 24-8-2011, Jagadish, brother of the complainant, aged about 12 years, was grazing cattles in his brother's baron land situated at Hire-Upperi Village, accused No.1 abused him in filthy language, threatened to chop him and throw him in a canal. Hence, on 26-8-2011 at about 8.00 a.m., the complainant and his mother, Balamma, came to the house of accused-Yamunappa to enquire as to why accused No.1 threatened Jagadish while grazing the cattles in their land, at that time, accused Nos.1 to 5 formed unlawful assembly and abused them in filthy language. Accused No.4 assaulted the complainant with axe on the back of his head, accused No.2 assaulted with knife on the left cheek, accused No.1 assaulted with stone to the right hand little finger and accused No.3 assaulted with stone on his head and caused bleeding injuries. When the mother of the complainant came to his rescue, -4- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 accused No.4 assaulted her with club on her left shoulder and caused fracture to her and accused No.5 assaulted her with stone on her right hip. Hence, the complainant lodged a complaint to the respondent-Police.
3. Based on the complaint, Lingasugur Police registered a case in Crime No.73 of 2011, submitted F.I.R. to the Court and copy of the same to the higher Authority. Later, the Investigating Officer conducted investigation and filed the charge-sheet. After receipt of the charge- sheet, the Magistrate took cognizance of the offences and since this case is a counter-case to Sessions Case No.45 of 2012, the matter was committed to the Court of Sessions to record common evidence. The Sessions Judge framed charge against the accused persons and read over to them, they pleaded not guilty to the charge and they claimed to be tried.
4. In order to prove its case, the prosecution examined in all ten witnesses as PW.1 to PW.10, got marked five documents as per Exs.P.1 to P.5 and got -5- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 marked three material objects as per MOs.1 to 3. The statements of the accused persons as contemplated under Section 313 of the Cr.P.C. were recorded by the trial Court by explaining the incriminatory material, the case of the accused persons was of total denial and they did not enter the witness box.
5. The trial Court, on the basis of the material available on the record, framed the following points for consideration, which reads as under:
1. Whether the prosecution has established beyond reasonable doubt that on 26.08.2011 at about 08:00 a.m. when brother of the complainant namely Jagadish was grazing cattle in his brother's baron land situated in Hire-
Upperi village with their common intention A-1 abused him in filthy language & threatened to chop & throw him in the canal with regard to as to why he was grazing the cattle there & when complainant, his mother Balamma came together to the house of accused asking them as to why A1 had abused & threatened Jagadish while grazing cattle in their land, A2 & A3 being -6- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 enraged over the same abused them in filthy language thereby gave provocation to them intending or knowing it to be likely that such provocation will cause the complainant to break public peace & thereby committed the offence punishable u/sec.504 r/w. sec.149 of IPC?
2. Whether the prosecution has established beyond reasonable doubt that on the aforesaid date, time & place on account of previous enmity with complainant A2 assaulted him with deadly weapon like stone on his right hand's little finger & caused injury to him, A3 assaulted him with deadly weapon like stone on his head & caused injury to him & when CW2 came to the rescue of complainant A1 assaulted him with wooden club on his right arm & voluntarily caused grievous hurt to him, when CW7 came to the rescue of CW1 A4 Sangappa assaulted the CW7 with wooden club & caused fracture injuries to her left side forearm & assaulted with axe on back of head of CW1 & thereby committed the offence punishable u/sec.324 r/w. sec.149 of IPC?
3. Whether the prosecution has established beyond reasonable doubt that accused on the aforesaid date, time & place on account of -7- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 previous enmity with complainant A1 assaulted him with deadly weapon like axe on the back of his head & caused bleeding injury & A3 assaulted him with deadly weapon like stone on his head & caused injury to him & A4 also assaulted the CW1 with deadly weapon like an axe on his head & caused grievous injuries to him & thereby committed the offence punishable u/sec.326 r/w. sec.149 of IPC?
6. On the basis of oral and documentary evidence, the trial Court convicted accused Nos.1 to 5 and sentenced them to undergo rigorous imprisonment for five years and to pay fine of Rs.5,000/- each and in default of payment of fine, to undergo simple imprisonment for three months for the offence punishable under Section 326 read with Section 149 of the IPC, accused Nos.1 to 5 sentenced to undergo rigorous imprisonment for two years and to pay fine of Rs.3,000/- each and in default of payment of fine, to undergo simple imprisonment for two months for the offence punishable under Section 324 read with Section 149 of the IPC, and further, accused Nos.1 to 5 sentenced -8- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 to undergo rigorous imprisonment for one year and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo simple imprisonment for one month for the offence punishable under Section 504 read with Section 149 of the IPC. The trial Court further ordered that all the sentences to run concurrently and gave set off under Section 428 of the Cr.P.C. for the period of retention already undergone by the accused persons. Being aggrieved by the said judgment of conviction and order on sentence passed by the trial Court, the appellants have filed this appeal.
7. Heard Sri Shivananda V. Pattanashetti, learned counsel for the appellants, and Sri J. Shahabuddin, learned High Court Government Pleader for the respondent-State.
8. Learned counsel for the appellants has contended that the judgment of conviction and order on sentence passed by the Sessions Judge is contrary to the law and the learned Sessions Judge has committed a serious error in convicting the appellants without properly appreciating -9- NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 the evidence in its proper prospective manner. He has contended that, the present case in Sessions Case No.25 of 2013 and the counter-case in Sessions Case No.45 of 2012 are arising out of same incident occurred on 26-8-2011 at 8.00 a.m., but the trial Court surprisingly acquitted the complainant and others/accused persons in Sessions Case No.45 of 2012 and convicted the appellants on the strength of same set of evidence collected by the prosecution and hence, the trial Court ought to have acquitted the appellants. The trial Court misconceived itself and wrongly came to the conclusion that the appellants are the aggressors and on the strength of that fact, they are wrongly convicted by the trial Court. The trial Court has convicted the appellants for the offence under Section 326 of the IPC. To prove the charges under Section 326 of the IPC, the prosecution should produce X- ray report. He has contended that, initially the charge- sheet was filed against accused Nos.1 to 3 and later, an application under Section 319 of the Cr.P.C. was filed and accused Nos.4 and 5 were brought on record and hence,
- 10 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 this aspect of the matter is not properly appreciated by the trial Court. He has contended that PWs.2 and 3 voluntarily came to the house of the accused and questioned the accused as to why they threatened the younger brother of PW.2, by name Jagadish, at that time, quarrel took place between both the parties, but the finding given by the trial Court with regard to aggressors of the incident is against the appellants. The evidence of eyewitnesses is full of contradictions and omissions and hence, the trial Court ought to have disbelieved their oral testimonies. He has further contended that, once the counter-case is ended in acquittal, the other case should also been acquitted. Whereas in the instant case, the trial Court without following such principles, convicted the appellants. Therefore, he submits that the benefit of counter-case should be extended to the appellants, as they are not the aggressors. He has further contended that, if the judgment of conviction and order on sentence passed by the trial Court is confirmed, then it will give a wrong message to the society.
- 11 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018
9. Learned counsel further submits that the accused persons had also sustained injuries and hence, they had filed Sessions Case No.45 of 2012, but in the present case neither PW.2 nor PW.3 explained the injuries sustained by present accused persons. Hence, it would be fatal to the case of the prosecution and in this regard, he has relied upon the decision of the Hon'ble Apex Court in the case of STATE OF M.P. v. MISHRILAL (DEAD) AND OTHERS in Criminal Appeal No.489 of 1996 disposed of on 2-4-2003.
10. Learned High Court Government Pleader has contended that the appellants are aggressors, they have assaulted PWs.2 and 3 with deadly weapons and thereby, caused bleeding injuries. Hence, it would attract Sections 324 and 326 of the IPC. The prosecution witnesses, i.e. PWs.2, 3, 4 and 5 have supported the case of the prosecution and their oral evidence corroborates with the medical evidence and therefore, the trial Court has rightly
- 12 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 convicted the appellants. Hence, he prayed to dismiss the appeal.
11. Having heard the learned counsel for the appellants/accused Nos.1 to 5 and the learned High Court Government Pleader for the respondent-State, the point that arises for my consideration in this appeal is:
i. Whether the judgment of conviction dated 15-12-2018 and order on sentence dated 17-12-2018 passed by the Principal District and Sessions Judge, Raichur, in Sessions Case No.25 of 2013 calls for interference?
12. As per the charge framed by the trial Court, on 26-8-2011 at 8.00 a.m., accused Nos.1 to 5 formed unlawful assembly by holding deadly weapons like axe, knife, stone etc., took quarrel with the complainant-PW.2, abused him in filthy language and intentionally insulted him. Accused No.1 assaulted PW.2 with stone on his right hand little finger, accused No.2 assaulted with knife on the left cheek, accused No.3 assaulted him with stone on his
- 13 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 head and when PW.3, mother of the complainant, came to rescue PW.2, accused No.4 assaulted her with club on left shoulder and caused fracture and accused No.5 assaulted her with stone on right hip.
13. In order to prove this aspect, the prosecution examined:
a. PW.1-Dr. Devappa Kadadalli has stated that on 26-8-2011 at 10.00 a.m., PW.2-Amarappa and PW.3- Balamma were brought to the Hospital with history of assault. Thus, he examined and issued Wound Certificates as per Exs.P.1 and 2.
As per Ex.P.2-Wound Certificate of PW.2; the injuries described as under;
"1. Cut lacerated wound right side of the occipital region size 5cm X 1/2cm X 1/2cm bleeding present.
2. Cut Lacerated wound right on left side of the chin size 3cm X 1/2cm X 1/2cm bleeding present.
- 14 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018
3. Abrasion present on right little finger size 2cm X 1/2cm bleeding present."
As per the opinion of the Doctor, injury Nos.1 and 2 may be caused by assault with any sharp edged weapon. Injury No.3 may be caused with any blunt object.
As per Ex.P.1-Wound Certificate of PW.3; the injuries mentioned as under;
"1. Tenderness and Swelling with on the left arm secondary left significant of forearm right.
2. Tenderness with on right thigh.
3. Tenderness with on muscular region."
As per the opinion of the Doctor, injury No.1 is grievous and injury Nos.2 and 3 are simple in nature. He further opined that X-ray of the left arm was taken in his hospital and found fracture of left humerus of middle 1/3rd. The above said injuries may be caused by assault with any hard or blunt object.
- 15 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 In the cross-examination, he admits that incised wounds are caused by any sharp edged weapon and there is clear cut of skin, the lacerated wounds would be in irregular or zigzag manner and lacerated wounds would caused by blunt objects only. He admits that the Police have not shown any weapon to him and seek his opinion. If the weapons were produced before him, he could have given his opinion as to whether the injuries found on the persons could be caused by those weapons. He specifically admitted that injuries mentioned in Exs.P.1 and P.2 may be caused by a fall on the hard surface. He further admits that he has not mentioned the color of injury in Wound Certificates.
b. PW.2-Amarappa, complainant-injured, has deposed that on 24-8-2011, his younger brother, Jagadish, aged about 12 years, went to graze cattle in their kushki land, at that time, accused No.5 objected and threatened him to throw him in the canal by chopping his body into pieces. Hence, on 26-8-2011 at 8.00 a.m., the
- 16 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 complainant and his mother went to the house of accused- Yamunappa to question as to why they threatened Jagadish, at that time, accused No.4 assaulted him with axe on the back of his head, accused No.2 assaulted with knife on the left cheek, accused No.1 assaulted with stone to the right hand little finger and accused No.3 assaulted with stone on his head and caused bleeding injuries. When his mother came to his rescue, accused No.4 assaulted her with club on her left shoulder and caused fracture to her and accused No.5 assaulted her with stone on her right hip. In the cross-examination, he admits that there is a civil dispute between them and accused No.1 lodged a criminal case against the family of the complainant and rests of the suggestions were denied by him.
c. PW.3-Balamma, mother of the complainant, has deposed that on the date of incident at 8.00 a.m., she had been to the house of accused-Yamunappa along with PW.2 and questioned him as to why he threatened her son
- 17 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 Jagadish, at that time, accused Nos.1 to 5 formed unlawful assembly and assaulted the complainant with deadly weapons and when she came to rescue the complainant, accused No.4 assaulted her with club on her left shoulder, accused No.2 assaulted her with stone on her right hip and thereby, caused bleeding injuries. In the cross-examination, she admits that there is a case and counter-case between them and the accused persons, and there is civil dispute in respect of the land and the same is pending before the Lingasugur Court. She specifically admitted that at the time of incident, she does not remember the persons, who were present at the spot and she cannot say the number of persons, who were present at the spot and rest of the suggestion were denied by her.
d. PW.4-Gaddeppa has deposed that on the date of alleged incident, he heard the voice from the house of accused-Yamunappa and hence, he visited the house of accused, at that time, the accused persons were assaulting PWs.2 and 3 with club, stone and knife. Thus,
- 18 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 PWs.1 and 2 sustained injures and therefore, he pacified the quarrel. In the cross-examination, he admits that there is civil dispute between the family of the complainant and the accused persons. He admits that there is a case and counter-case between them.
e. PW.5-Amaresh is an eyewitness to the incident. He reiterates the averments made in the evidence of PWs.2 to 4.
f. PW.6-Sharanappa is also an eyewitness to the incident. He also reiterates the averments made in the evidence of PWs.2 to 5.
g. PW.7-Narasappa and PW.8-Bandanagouda are mahazar witnesses. They have turned hostile to the case of the prosecution.
h. PW.9-Siddaramayya, Police Sub-Inspector, who filed the charge-sheet against the accused persons. In the cross-examination, he has categorically admitted that there is case and counter-case between the parties and
- 19 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 the present accused persons had also suffered injuries, but he did not submit Wound Certificates of the accused persons in this case. However, he admits that Ex.D.1 to D.3 are the Wound Certificates of accused Nos.1, 2 and 4. He further admits that he conducted investigation regarding the injuries suffered by the accused persons and it is well within his knowledge. He also admits that both the parties have suffered injuries in the incident.
j. PW.10 - Mohinuddin, Head Constable, who received complaint from PW.2, registered the case and submitted F.I.R to the jurisdictional Court and his higher authority. He also visited the spot, drew spot panchanama as per Ex.P.4 and seized one axe and three stones as per MOs.1 to MO.3.
14. On perusal of the evidence of PW.1-Doctor, he has given description of injuries on physical examination of PWs.2 and 3 and has come to the conclusion that PW.3 had fracture of left humerus of middle 1/3rd. It is well settled law that when the prosecution alleges that grievous
- 20 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 injury has been caused, it is necessary for the prosecution to prove the same beyond reasonable doubt. The evidence of PW.1 would only show that there was injury as described in the Wound Certificate-Ex.P.1 of PW.3. Further, When PW.1 suspected said fracture, he ought to have referred PW.3 for taking X-ray to confirm his finding that there is fracture of middle finger. In the evidence, he has stated that he referred for X-ray, but such X-ray number has not been furnished and the Investigating Officer did not collect the X-ray report and appended the same to the charge-sheet. It is well settled that, unless the prosecution produces the X-ray for confirmation of fracture opined by the Doctor on medical examination clinically, it cannot be said that PW.3 had sustained fracture. It is true that in the cross-examination of PW.1, the learned counsel appearing for the appellants has not disputed the nature of injuries as deposed by PW.1. However, the same would not dispense with the production of X-ray by the prosecution to prove beyond reasonable doubt that injured had sustained fracture of
- 21 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 middle finger, which is an opinion given by PW.1-Doctor only on clinical examination of PW.3, the injured. Therefore, it is clear that the finding of the Sessions Judge holding that the prosecution has failed to prove that accused Nos.1 to 5 have committed the offence punishable under Section 326 of the IPC and the offence committed by them falls within an ambit of Section 324 of the IPC, is justified.
15. However, so far as the sentence for the offence punishable under Section 324 of the IPC is concerned, the imprisonment may extend to three years, with fine, or both. Admittedly, the incident occurred on 26-8-2011 and the trial Court passed judgment on 15-8-2018. Almost twelve years have been passed by and hence, it would not be proper to sentence the appellants with punishment of imprisonment as there is a case and counter-case between the appellants and the complainant. As there was scuffle between both the parties, the appellants assaulted PWs.2 and 3 and in turn, they also assaulted the appellants.
- 22 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 Accused Nos.1, 2 and 4 sustained vital injuries as per Exs.D.1 to D.3, but the trial Court has wrongly appreciated the fact and held that these appellants were the aggressors in the incident and wrongly convicted the appellants.
16. Admittedly, in counter-case, i.e. Sessions Case No.45 of 2012, the present complainant and others were acquitted for the offences under Sections 143, 147, 148, 504, 324, 326 and 307 read with Section 149 of the IPC. In the present case also, there are similar offences alleged by the complainant. The trial Court on the principle of case and counter-case should convict or acquit both the parties, but it has ignored this principle and merely convicted the appellants and acquitted the complainant in Sessions Case No.45 of 2012. In this regard, the trial Court made a grave error.
17. In the case of STATE OF KARNATAKA v.
HOSAKERI NINGAPPA AND ANOTHER reported in ILR 2012 KAR 509, the Division Bench of this Court
- 23 -
NC: 2023:KHC-K:7446 CRL.A No. 200175 of 2018 observed that "if two cases arise out of the same incident and if two charge-sheets are filed, two trials will be held. In a given case, the trial Judge may choose to acquit the accused in both the cases or to choose to convict the accused in both the cases".
18. Admittedly, in the instant case, there are case and counter-case. The trial Court acquitted the complainant and others in Sessions Case No.45 of 2012 and convicted the appellants in the present case. Accused Nos.1, 2 and 4 sustained vital injuries as per Exs.D.1 to D3, however, the trial Court ignored these aspects. Further, the trial Court ignored the fact that there is civil dispute between the parties and the civil matter has been given a texture of criminal case. Looking into any angle, the trial Court has wrongly appreciated the matter and convicted the appellants for the aforesaid offences, which requires interference. Hence, I answer the point framed in affirmative.
19. Accordingly, I proceed to pass the following
- 24 -
NC: 2023:KHC-K:7446
CRL.A No. 200175 of 2018
ORDER
i. Criminal appeal is allowed.
ii. The judgment of conviction dated 15-12-2018 and order on sentence dated 17-12-2018 passed by the Principal District and Sessions Judge, Raichur, in Sessions Case No.25 of 2013, is set aside; iii. Appellant Nos.1 to 5/accused Nos.1 to 5 are set at liberty and their bail bonds, if any, shall stand cancelled, and iv. The fine amount, if any, deposited shall be returned to the appellants, forthwith.
The Registry is directed to return the trial Court record, forthwith.
Sd/-
JUDGE KVK List No.: 1 Sl No.: 25